Citation Nr: 0842843
Decision Date: 12/12/08 Archive Date: 12/17/08
DOCKET NO. 05-30 196 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Legal entitlement to nonservice-connected death pension
benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Crohe, Associate Counsel
INTRODUCTION
The veteran had service with the recognized guerrilla and the
Regular Philippine Army from March 1945 to October 1945. He
died in April 2000. The appellant is his surviving spouse.
In a notification letter dated in December 2004, the VARO in
Manila, the Philippines, denied the appellant's claim for,
among other things, VA death benefits because her deceased
spouse did not have the required military service to render
her eligible for VA death benefits.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
claim has been developed, and the appellant has received
proper notice regarding her claim.
2. The appellant's deceased spouse did not possess the
requisite service for her to qualify for VA nonservice-
connected death benefits.
CONCLUSION OF LAW
The requirements of basic eligibility for VA death pension
benefits have not been met. 38 U.S.C.A. §§ 101(2), 101(24),
107, 1521, 1541 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.1,
3.6, 3.40, 3.203 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), does
not apply in the instant case. The only issue before the
Board is whether the appellant's deceased spouse had
qualifying service to establish veteran status; if not, she
is not a proper claimant for VA benefits. The record
includes service department certification of nonservice.
Because qualifying service and how it may be established are
outlined in statute and regulation and because service
department certifications of service are binding (and
dispositive unless there is evidence suggesting that a
request for recertification of service is necessary), the
Board's review is limited to interpreting the pertinent law
and regulations. The United States Court of Appeals for
Veterans Claims (Court) has held that when the interpretation
of a statute is dispositive of the issue on appeal, neither
the duty to assist nor the duty to notify provisions of the
VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App.
143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32
(2000).
Nonetheless, September 2004 and June 2006 letters explained
the evidence necessary to substantiate the appellant's claim,
the evidence VA was responsible for providing, the evidence
she was responsible for providing, and advised her to submit
any evidence or provide any information she had regarding her
claim. The appellant has not submitted any evidence to
suggest recertification of her husband's service is
necessary.
The appellant argues that her husband had service with the
recognized guerrillas, Philippine Scouts, and the
Commonwealth Army of the Philippines, and that the service he
rendered for and on behalf of the United States Armed Forces
should establish basic eligibility for entitlement to
nonservice-connected disability death pension benefits.
VA law provides that nonservice-connected death pension
benefits shall be paid to the surviving spouse of a veteran
of a period of war who meets established service
requirements. 38 U.S.C.A. § 1541. To establish basic
eligibility for VA nonservice-connected death pension
benefits, in part, the claimant must be a veteran who had
active military, naval, or air service. 38 U.S.C.A. §§
101(2), (24), 1521(j); 38 C.F.R. §§ 3.1, 3.6.
The term "veteran" is defined as a person who served in the
active military, naval, or air service, and who was
discharged or released there from under conditions other than
dishonorable. 38 U.S.C.A. § 101(2). "Active military, naval,
and air service" includes active duty. In turn, "active
duty" is defined as full-time duty in the Armed Forces. 38
C.F.R. § 3.6(a), (b). The "Armed Forces" consist of the
United States Army, Navy, Marine Corps, Air Force, and Coast
Guard, including their Reserve components. 38 C.F.R. § 3.1.
Service prior to July 1, 1946 in the Philippine Scouts and in
the organized military forces of the Government of the
Commonwealth of the Philippines in the service of the Armed
Forces of the United States (including recognized guerrilla
service) is qualifying service for compensation, dependency
and indemnity compensation, and burial allowance. However,
it is not qualifying service for nonservice-connected pension
(to include death pension) benefits. 38 U.S.C.A. § 107; 38
C.F.R. §§ 3.40, 3.41.
For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity compensation or burial
benefits, VA may accept evidence of service submitted by a
claimant, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department if the evidence meets the following conditions:
(1) the evidence is a document issued by the service
department; (2) the document contains needed information as
to length, time and character of service; and (3) in the
opinion of VA the document is genuine and the information
contained in it is accurate. 38 C.F.R. § 3.203(a).
When the claimant does not submit evidence of service or the
evidence submitted does not meet the requirements discussed
above, VA shall request verification of service from the
service department. 38 C.F.R. § 3.203(c). The United States
Court of Appeals for Veterans Claims (Court) has held that
the findings by the service department verifying a person's
service are binding on VA for purposes of establishing
service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet.
App. 530, 532 (1992); see Venturella v. Gober, 10 Vet. App.
340 (1997).
Here, the service department has verified that the veteran's
military service consisted of: missing status from October
1943 to March 1945; recognized guerrilla service from March
1945 to October 1945; and Regular Philippine Army service in
October 1945. Although the appellant contended that the
veteran had service with the Philippine Scouts, it is not
shown that the veteran had any additional active service
beyond what had been verified by the service department. The
Board finds that the appellant does not meet the basic
eligibility requirements for nonservice- connected death
pension benefits because the veteran did not have qualifying
service. 38 U.S.C.A. § 1521(j), 1541; 38 C.F.R. § 3.3. Under
governing law and regulations, his recognized guerrilla
service, and service in the Regular Philippine Army, is not
qualifying service for nonservice-connected death pension
benefits. 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.40, 3.41. Even
service in the Philippine Scouts is not qualifying service
for nonservice-connected death pension benefits. The Board
is legally precluded from finding otherwise 38 C.F.R. §
20.101. The veteran's service qualified him to receive
compensation, dependency, indemnity compensation and burial
allowance, but did not qualify him or his surviving spouse to
receive pension benefits.
The appellant has provided no evidence that would warrant a
request for re-certification of service. See Sarmiento v.
Brown, 7 Vet. App. 80, 85 (1994). Because the law is
dispositive on this issue, the appellant's claim must be
denied because of the absence of legal merit or entitlement
under the law. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
ORDER
The appellant does not have legal entitlement to nonservice-
connected death pension benefits and his claim is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs